European court rules obesity is a disability

The European Court of Justice (ECJ) has ruled that obesity is a disability.

The ECJ found that while no general principle of European Union (EU) law prohibits discrimination on the grounds of obesity, the condition falls within the concept of ‘disability’ and whether it hinders participation in professional life.

Paul Callaghan, head of employment law at international law firm Taylor Wessing, said: “The European Court of Justice has ruled that obesity itself is not a disability, but that the effects of it can be.

“As such, workers who suffer from, joint problems, depression, or diabetes, specifically because of their size, will be protected by the European Equal Treatment Framework Directive and cannot be dismissed because of their weight.”

Jillian Naylor, employment partner at law firm Linklaters, added: “Whereas employers are not usually concerned about the origin of a disabled employee’s impairment, where the impairment is caused or aggravated by obesity, it is more emotive, as it is something over which individuals have perceived control. Employers will need to be sensitive to this. Not every obese employee is disabled.

”Employers must make adjustments to accommodate any special requirements arising from a person’s disability. This applies equally where the origin of the disability is obesity.

”Obesity, particularly severe obesity, can be a sensitive subject, so employers will have to tread carefully and not make assumptions about the needs of an obese worker.”

This ruling is a real problem for employers – it’s still not clear enough for them to be sure that they’re going to be on the right side of the law. While the ECJ doesn’t consider obesity a disability in itself, businesses could still face discrimination claims from obese staff if their weight problem is of such a degree that they fall within the definition of having a “disability” in the legislation.

This test could mean that businesses face claims from obese staff for failing to make reasonable adjustments to their role if the job entails tasks where they would be on an unequal footing with other staff – tasks that require full mobility such as stacking shelves in a supermarket for example.

The ECJ’s press release makes no reference to the level of an individual’s BMI, which we hope will be addressed in the full judgment. Skirting this issue is going to leave the phrase ‘severely obese’ open to judgement and create further confusion for employers and employees.

Employers will need to consider whether they make any adjustments for obese staff to protect themselves from discrimination claims, but they also need to consider whether doing so could trigger employee relation issues and related claims from other members of staff who feel that their obese colleague is ‘getting away’ with doing less work or ‘avoiding’ manual tasks – and that they are doing more of this work as a result.

We could also see the definition of disability widened to include other conditions – if severe obesity is under the microscope for the purposes of protection from discrimination, then this could be applied to conditions such as anorexia or bulimia as well. Employers will need to be alert to the potential need to make reasonable adjustments for employees with these conditions too.

This is broadly in line with the approach that the UK courts have already taken to this issue, so it is not a drastic shift in UK law. But the case highlights the increasing likelihood of obesity-related disability discrimination claims.

With around a quarter of adults in England believed to be obese and the National Obesity Forum estimating that around 1 million adults are morbidly obese (with a BMI over 40), this issue affects all UK businesses.

It had been suggested that a BMI of 40 or above would put a worker in this category, but this case suggests there is not a hard and fast rule – the key test is the impact on the individual’s day-to-day activities.

Discrimination because of a perceived disability or because of association with a disabled person is also unlawful, even if the worker isn’t disabled themselves, so the protection is broader than many people realise. The only way to minimise the risk of costly and embarrasing Tribunal claims is to create a culture where bullying or unfair treatment of any kind is not tolerated.